For centuries our common law has rejected ex post facto laws: we do not invent punishments or restrictions to apply to acts already committed. If we decide that lawn mowing is unacceptable on Sundays and make a law against it, the law is enforceable from that point forward but not retro-actively, against my neighbor whose mower interrupted my nap a week a go.
Two clauses in the United States Constitution prohibit ex post facto laws:
- Art 1, § 9
- This prohibits Congress from passing any laws which apply ex post facto.
- Art. 1 § 10.
- This prohibits the states from passing any laws which apply ex post facto.
But the actions contemplated by the Republicans in Texas would require a retroactive judicial decision in their favor. The principle of ex post facto prohibits legislatures from passing laws which retroactively criminalize behavior. That is however just a minimum standard. Wlhile this prohibition does not attach as stvia legislated language to judicial decisions, appellate courts sometimes announce a new rule of law, but will not apply it to the case in front of it, in order to attempt to comply with ex post facto prohibitions.
The norm in the US is and always has been no ex post facto laws or judgments. Period. It is so well known that in cases involving ex post facto, the ruling judges do not even need to cite the paragraphs of the Consitituion and the existing practice of upholding the norm.
That is an inviolable sine aus non of Anglo American common (judgment practice inherited from the past) law.We do not use legal gotchas.
So then how do Republicans reconcile trying to exclude write in votes retrospectively and the rule of law? They have known that write in ballots were in the offing and had been approved by Srares. They should have challenged before voting began not ex post facto, retroactively.
Has our judiciary finally become intrumpKate’s with the key foundation of all authoritarian governments: that the most powerful is always right, that might makes right? Are we as a nation finally throwing in the towel on the difficult debate and dialogue of democracy in favor of the oppressive but simpler toe-the-line deep freeze of autocracy?
Judicial prohibition of those Texas drive in votes means that we no longer have a judiciary of rights, It woujld mean that ours has collapsed into a Judge Freisler (Nazi showtrial judge) system of mock courts. It will mean that anything the autocrat or a loyal Trumpionette does not like about you and me can be made criminal and punished, with no defense, and without due process.
And it will not be just cutting your grasss that will be shut down: it will be anything that Trump and his Trumpionettes do not like about our involvement in this election I. Or about whatever Donnie loudmouths about, changing often from sentence to sentence. You could not even run a garbage pickup service that way, let alone a nation under emergency Pandemic threat.
Has the GOP finally completed the petrification process from Lincoln to Loudmouth, from Grand Old Party to Gotcha Oppression Party? Is the judiciary now a Trumpionette show too? Have we deteriorated into a nation under Trump instead of one under law?We had better hope not.